Human Rights Code Complaint Against Licensee by Another Licensee; Minor Defect in Comparison With Larger Contract Benefit Didn’t Justify Repudiation #401

By Gerry Neely
B.A. LL.B.

“Don’t shoot the messenger”—this must have been the reaction of a licensee against whom two complaints of discrimination under the Human Rights Code were made by another licensee. The first was discrimination on the basis of family status with respect to a service customarily available to the public under s. 8. The second was made under s. 43, which prohibits discrimination against a person who made a complaint under the Code.
 
The first licensee had a listing from a strata unit owner who was 84 years old and in failing health. The complainant lived with her handicapped son in the same building as the owner. They sat in the lobby of the building, taunting the people who entered. This frightened the elderly owner so much that she listed her unit for sale. Consequently, when the complainant asked the licensee for access for the complainant and a client to view the unit, the owner instructed the licensee to deny access.

This brought the nominees of both licensees together. Both licensees were prepared, if necessary, to show the property themselves; however, the complainant did not ask her nominee for assistance and filed the complaints. The s. 43 complaint arose because the complainant had previously made two complaints of discrimination against the strata corporation and strata council.

The licensee also lived in the building and was aware of the earlier complaints. The complainant alleged that denial of service by the licensee was in retaliation for these complaints. The evidence was overwhelmingly against the complainant; her own nominee even questioned why she filed the complaints when the access issue could have been resolved through the Real Estate Board of Greater Vancouver. Both complaints were dismissed.

Her nominee also gave evidence that an owner has a right to exclude certain buyers or refuse to sell to a specific individual. The Human Rights Tribunal member accepted this evidence, but remarked that the owner’s choice is not a defence when the buyer falls within one of the prohibited grounds of discrimination set out in the Code. This decision is also a reminder that it’s no defence to a complaint of discrimination to say you were only following orders.¹

Buyers paid a deposit of $391,000 on the purchase price of $1,955,000 for two strata units to be built over a two-year period. A dispute arose about the allocation of four parking stalls, and it was unresolved at the completion date in May 2003. After the buyers refused to complete the transaction, the seller resold the units in February 2004 for $2,750,000. The seller also sued successfully for the deposit when the judge held there was no substantial breach of contract by the seller that justified the buyers’ repudiation of the contract.

The buyers appealed, arguing that the deposit was a penalty and equity entitled them to relief from forfeiture of the deposit, particularly in light of the windfall profit. This argument would likely have succeeded had the parties not agreed that the deposit was a pre-estimate of the damages the seller would sustain if the buyer defaulted, and would be forfeited as liquidated damages. This pre-estimate of damages is encouraged because it reduces, if not eliminates, litigation to determine damages. The trial judge said the real estate market might have fallen over the building period and the seller could’ve lost more than the deposit. The appeal court agreed and dismissed the buyers’ appeal.(2)

To subscribe to receive BCREA publications such as this one, or to update your email address or current subscriptions, click here.

Without limiting the Terms of Use applicable to your use of BCREA's website and the information contained thereon, the information contained in BCREA’s Legally Speaking publications is prepared by external third-party contributors and provided for general informational purposes only. The information in BCREA’s Legally Speaking publications should not be considered legal advice, and BCREA does not intend for it to amount to advice on which you should rely. You should not, in any circumstances, rely on the legal information without first consulting with your lawyer about its accuracy and applicability. BCREA makes no representation about and has no responsibility to you or any other person for the accuracy, reliability or timeliness of the information supplied by any external third-party contributors.